European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2012/665.html
Cite as: [2012] ECHR 665

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FIFTH SECTION

DECISION

Application no. 21617/07
Carl-Gunnar HILLEFORS
against Sweden

The European Court of Human Rights (Fifth Section), sitting on 27 March 2012 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 16 May 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Carl-Gunnar Hillefors, is a Swedish national who was born in 1954 and lives in Hisings Backa. He was represented before the Court by Mr C. Jansson, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was employed as a mechanic and in May 1991 he had a nervous breakdown (psykisk kollaps). On 24 June 1993 he submitted an occupational injury report (arbetsskadeanmälan) to the Social Insurance Office (Försäkringskassan, “the Office”) of the County of Västra Götaland in which he requested that his psychological problems be considered work related and thereby make him eligible for life annuity (livränta). He claimed that his psychological problems had been caused by degrading treatment to which he had been subjected by his co-workers and his supervisor.

In a decision on 13 June 2001, the Board of the Social Insurance Office (Socialförsäkringsnämnden, “the Board”) decided not to accept the applicant’s mental illness as a work injury and found that the applicant’s personality was the primary cause of his problems. The applicant and his representative at the time had been present at a meeting with the Board, before the Board made its decision.

The applicant appealed against the decision to the County Administrative Court (länsrätten) in Gothenburg, claiming that he had been subjected to degrading treatment at work. Through his legal representative he requested compensation under the 1976 Work Injury Insurance Act (lagen om arbetsskadeförsäkring, SFS 1976:380). In support of his claims he submitted written statements by six former co-workers and several medical certificates.

The County Administrative Court, in its assessment of the case, had access to the Office’s case-file and to extensive medical documentation, including copies of medical records and opinions given by several physicians and several of the Office’s own appointed doctors (försäkringsläkare).

On 28 March 2003 the County Administrative Court rejected the applicant’s appeal. It found that he had not sufficiently proved that, from an objective point of view, he had been subjected to treatment that was considered injurious in the eyes of the law. The court did not question the applicant’s subjective perception of the alleged circumstances, but there was not sufficient objective evidence to hold that the applicant’s supervisor and colleagues had acted in an incorrect manner. During the proceedings before the County Administrative Court no oral hearing was requested by the applicant, nor did the court hold one on its own initiative.

The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Gothenburg. He requested leave to appeal and maintained his claim. He further requested that an oral hearing be held in his case so that he could explain, under oath, the treatment to which he had been subjected and so that two of the witnesses, who had previously given written statements, could be heard before the court under oath.

On 2 February 2004, the judge rapporteur at the Administrative Court of Appeal drew up a memorandum stating that the applicant’s legal representative had been informed over the phone that the court did not intend to hold an oral hearing before taking its decision regarding leave to appeal. The memorandum further stated that the applicant had been given a prolonged respite until 5 March 2004 to submit additional documents.

In a final submission to the court, received on 8 March 2004, the representative supplemented the applicant’s appeal.

On 26 March 2004 the Administrative Court of Appeal, which had access to the Office’s and the County Administrative Court’s case-files, refused leave to appeal.

The applicant appealed to the Supreme Administrative Court (Regerings-rätten). He stated that he had requested an oral hearing before the Administrative Court of Appeal and that the purpose of the oral hearing had been presented. He also objected to the fact that the Administrative Court of Appeal had failed to reject his request for an oral hearing in a separate decision. No request was made for an oral hearing before the Supreme Administrative Court.

On 27 November 2006 the Supreme Administrative Court refused leave to appeal.

B. Relevant domestic law and practice

Domestic provisions of relevance in the present case are found in the 1976 Work Injury Insurance Act (lagen om arbetsskadeförsäkring, SFS 1976:380) and the Administrative Court Procedure Act (förvaltningsprocesslagen, SFS 1971:291, “the 1971 Act”). The 1976 Work Injury Insurance Act has been incorporated into Chapters 39 and 41 of the Social insurance Code as of 1 January 2011.

1. Work Injury Insurance Act

According to Chapter 2, section 1, of the 1976 Work Injury Insurance Act, the term “work injury” mainly refers to injuries resulting from accidents or other harmful factors at a person’s workplace. Under the Act, all gainfully employed persons working in Sweden are insured against work injuries.

For an injury to qualify as a work injury, a causal link must be established between the accident or harmful factor in the workplace and the insured person’s health problems. At the relevant time, if it was clear that the insured person had been subjected to harmful factors at work, his or her medical problems were presumed to have been caused by the harmful factors unless there were substantially stronger grounds for a conclusion to the contrary (Chapter 2, section 2, of the 1976 Act in its wording before 1 January 1993, which applied to the present case).

Regarding mental and psychosomatic illnesses, the travaux préparatoires (govt. Bill 1975/76:197 pp. 71 and 90-91) emphasise that some factors that are connected to work or work conditions, and that may give rise to a disturbance to mental health, are not such that the harmful effect that may occur should fall under the 1976 Act. Thus, it is in the nature of things that mental health disturbance as a result of, inter alia, shutting down work places, lack of appreciation of work efforts and discomfort with work tasks or colleagues should not give rise to compensation.

2. Administrative Court Procedure Act

Section 9 of the Administrative Court Procedure Act, as in force at the relevant time was worded as follows:

“The procedure shall be in writing.

Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues.

In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”

In a case concerning social insurance, leave to appeal is required for the Administrative Court of Appeal to consider an appeal against a decision issued by a County Administrative Court. Leave to appeal shall be granted if it is of importance for the guidance of the application of law that a superior court considers the appeal, if reason exists for amendment of the County Administrative Court’s conclusion, or if there are otherwise extraordinary reasons to entertain the appeal.

A decision of the Administrative Court of Appeal not to grant leave to appeal may be appealed against to the Supreme Administrative Court.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that his right to an oral hearing before the national courts had been violated in the present case.

THE LAW

The applicant complained that he had been deprived of his right to a fair hearing since he had not been granted an oral hearing. He relied on Article 6 § 1 of the Convention, the relevant parts of which provide:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by ... [a] tribunal.”

A. Submissions by the parties

1. The Government

The Swedish Government claimed that the application was inadmissible for non-exhaustion of domestic remedies, or, if the Court did not accept this, that it was inadmissible as manifestly ill-founded, considering that the case revealed no violation of the Convention.

With regard to the lack of an oral hearing, the Government claimed that the County Administrative Court, in the present case, was the only court that made a full examination of the case. The applicant, who was represented by legal counsel, must have been aware that leave to appeal had to be granted for full examination before the appellate courts. He must have also been aware that leave to appeal would only be granted under certain conditions and that oral hearings were rarely held in leave-to-appeal proceedings. In these circumstances, and since the Administrative Court Procedure Act (Section 9) provided that the proceedings before the administrative courts were normally in writing, the applicant could have been expected to request a hearing before the County Administrative Court if he had attached importance to it. He did not do so and should therefore be considered to have waived his right to a hearing before that court. He had also, by not requesting an oral hearing, waived his right to an oral hearing before the Supreme Administrative Court.

As to the lack of an oral hearing before the Administrative Court of Appeal, the Government emphasised that, in the interest of the proper administration of justice, it was normally more expedient that a hearing be held at first instance rather than only before the appellate court. It was also important to bear in mind that the request for an oral hearing before the Administrative Court of Appeal was made before the court had determined whether leave to appeal should be granted and that, as a consequence of its refusal to grant leave to appeal, it did not make a full examination of the applicant’s case. The applicant was given ample time to put forward his case and to submit further observations and written evidence in the appellate proceedings before the question of leave to appeal was determined.

The alleged purpose of the hearing was, according to the applicant, to give the witnesses the opportunity, under oath, to develop what they had stated previously in writing. The written statements had been referred to in the judgment of the County Administrative Court. It was questionable whether an oral hearing would have added anything of relevance to the written submissions and evidence on which the Administrative Court of Appeal based its decision to refuse leave to appeal.

2. The applicant

The applicant maintained that the lack of an oral hearing had violated his rights under Article 6 § 1 of the Convention. He claimed that the jurisdiction of the Administrative Court of Appeal had not been limited to matters of law, since the Administrative Court of Appeal in the assessment for leave to appeal had to take into consideration whether reason existed for amendment of the County Administrative Court’s conclusion.

Having regard to the reasons behind the County Administrative Court’s judgment, the purpose of requesting an oral hearing before the Administrative Court of Appeal was to supplement the evidence by allowing further explanations of the kind of treatment to which he had been subjected. It appeared that an oral hearing could have provided information of relevance to the determination of the applicant’s case.

B. The Court’s assessment

The Court need not examine the Government’s objection of non exhaustion of domestic remedies as the applicant’s complaint under Article 6 § 1 of the Convention is in any event inadmissible for the following reasons.

The Court initially notes that it has not been argued that the application, relating to a claim for benefits under the Work Injury Insurance Act, did not concern a dispute over a “civil right” in the autonomous sense of Article 6 § 1 of the Convention. This provision is accordingly applicable. The only issue is whether there was a failure to comply with Article 6 § 1 on account of the refusal to hold an oral hearing.

The Court finds that the entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. However, the obligation to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be explicit or tacit, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Salomonsson v. Sweden, no 38978/97, § 34, 12 November 2002, Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66; and Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58).

Furthermore, a hearing may not be necessary due to exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see, mutatis mutandis, Fredin v. Sweden (no. 2), judgment of 23 February 1994, Series A no. 283-A, pp. 10 11, §§ 21-22; and Fischer v. Austria, judgment of 26 April 1995, Series A no. 312, pp. 20-21, § 44).

In this connection, the Court reiterates that in proceedings before a court of first and only instance there is normally a right to a hearing. However, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings at issue, provided a hearing has been held at first instance (see, for instance, Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 16, § 36).

The exceptional character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases. For example, the Court has recognised that disputes concerning benefits under social-security schemes are generally rather technical, often involving numerous figures, and their outcome usually depends on the written opinions given by medical doctors. Many such disputes may accordingly be better dealt with in writing than in oral argument. Moreover, it is understandable that in this sphere the national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to the particular diligence required in social-security cases (see Döry v. Sweden, no. 28394/95, § 41 and Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263).

The Court further reiterates that, provided a public hearing has been held at first instance, a less strict standard applies to the appellate level, at which the absence of such a hearing may be justified by the special features of the proceedings at issue. Thus, leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given the opportunity to be heard in person by the appeal or cassation court. Regard must be had to the nature of the national appeal system, to the scope of the appellate court’s powers and to the manner in which the applicant’s interests are actually presented and protected in the appeal, particularly in the light of the nature of the issues to be decided by it, and whether these raise any questions of fact or questions of law which cannot be adequately resolved on the basis of the case file (see for instance Helmers v. Sweden, cited above, p. 16, § 36).

The Court considers that this less strict standard should also apply if an oral hearing has been waived at first instance and requested only on appeal. In the interests of the proper administration of justice, it is normally more expedient that a hearing be held at first instance rather than only before the appellate court (see for instance Döry v. Sweden, cited above).

In Fexler v. Sweden, the applicant had not requested a hearing before the County Administrative Court. As Section 9 of the 1971 Act provided that the proceedings before the administrative courts were normally in writing, the Court found that the applicant could have been expected to request a hearing before that court if he had attached importance to it. He did not do so and the Court therefore found that he could reasonably be considered to have waived his right to a hearing before the County Administrative Court (Fexler v. Sweden, no. 36801/06, § 60, 13 October 2011; see also Lundevall v. Sweden, no. 38629/97, § 35, 12 November 2002).

In the present case, the applicant did not request an oral hearing at first instance, where it would have been most appropriate to do so. It is noted that the applicant was represented by legal counsel throughout the entire proceedings. The court concludes that the applicant could reasonably be considered to have waived his right to a hearing before the County Administrative Court and that, thus, the absence of an oral hearing before the County Administrative Court was justified.

Moreover, the Supreme Administrative Court only determined whether or not leave to appeal should be granted and, as a consequence of its refusal to grant leave, did not make a full examination of the applicant’s case. The applicant did not request an oral hearing before the Supreme Administrative Court and, even assuming that Article 6 § 1 applies to the determination of leave to appeal, the Court finds that this question could be adequately resolved on the basis of the case file and the written submissions. Accordingly, the absence of an oral hearing before the Supreme Administrative Court was justified.

It remains to be determined whether the lack of an oral hearing before the Administrative Court of Appeal involved a breach of the applicant’s rights under Article 6 § 1 of the Convention.

The applicant has been considered to have waived his right to a hearing before the first instance court and the proceedings before the Administrative Court of Appeal concerned only the question of leave to appeal.

The Court notes that the Administrative Court of Appeal shall grant leave to appeal in three different situations, one of them being when reason exists for an amendment of the County Administrative Court’s conclusion. The rule does not, however, refer to the reasoning of the lower court’s judgment.

The applicant requested an oral hearing before the appellate court, to supplement the evidence by allowing the applicant and the witnesses to further explain the kind of treatment to which he had been subjected by his colleagues and his supervisor. It is noted that the witnesses to be heard had already given written statements, which had been considered by the County Administrative Court and were available to the Administrative Court of Appeal. The County Administrative Court had not, in its judgment, questioned the credibility of the facts referred to in the written statements.

The appellate court did not find reason to amend the County Administrative Court’s conclusion and did not grant leave to appeal.

The Court cannot find that the invoked supplements raised any issues which could not have been adequately resolved on the basis of the case-file and the parties’ written observations (compare Fexler v. Sweden, cited above, §§ 66 and 67).

Having regard to the foregoing, and in particular to the fact that an oral hearing had not been requested at first instance, the Court finds that the lack of an oral hearing was justified by the circumstances in the case and that there is no appearance of a breach of the applicant’s rights within the meaning of Article 6 § 1 of the Convention. It follows that the application must be rejected as manifestly ill-founded under Article 35 §§ 3(a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann
Registrar President